By Bradley A. Smith
Government efforts to regulate campaigns, as apart from elections, suffer from the inability to develop meaningful or even non-arbitrary, judicially manageable standards. However, there is a further, more fundamental reason to be concerned about legislative efforts to regulate campaigns — they inexorably lead to the government placing its thumb on the scale to advantage certain candidates and interests.
Candidates enter campaigns with a wide variety of advantages and disadvantages. The same is true of political parties, and the various interests, citizen organizations and even viewpoints that will play a part in the campaign. Government regulation of campaigns inherently involves choices that benefit or harm particular types of candidates and interests, and as such they are inherently open to manipulation by the government itself.
One obvious group that may be routinely favored by campaign regulation is incumbents. Justice Scalia has been particularly skeptical of incumbent self-dealing over the years. As he wrote in dissent in Austin v. Michigan State Chamber of Commerce, “[t]he incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition.”
